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[1990] UKSSCSC CSB_888_1988 (28 March 1990)

R(SB) 5/91

Mr. D. G. Rice CSB/888/1988
28.3.90

Recovery of overpayment – limitation period – whether section 9(1) of the Limitation Act 1980 applies before an overpayment is found to be recoverable

An adjudication officer decided on 3 February 1986 that the claimant had been overpaid supplementary benefit amounting to £4,445.82 which was recoverable from him pursuant to section 20 of the Supplementary Benefits Act 1976. The claimant appealed to the tribunal on the ground that section 9(1) of the Limitation Act 1980 applied to the computation of any recoverable overpayment of benefit. The tribunal rejected this contention and upheld the adjudication officer's decision. The claimant appealed to the Commissioner.

Held that:

section 9(1) of the Limitation Act simply has no application to proceedings before the adjudicating authorities but when the amount of the overpayment has been finally determined by the adjudicating authority at whatever level, including the Commissioner or Court of Appeal, then, and then only, for the purpose of recovery of the overpayment by action in the Courts, time begins to run (para. 7).

The appeal was dismissed.

DECISION OF THE SOCIAL SECURITY COMMISSIONER

For the reasons hereinafter appearing, the decision of the social security appeal tribunal given on 6 October 1987 is not erroneous in point of law, and accordingly this appeal fails.

This is an appeal by the claimant, brought with the leave of the tribunal chairman, against the decision of the social security appeal tribunal of 6 October 1987.

On 3 February 1986 the adjudication officer decided that the claimant had been overpaid supplementary benefit to the extent of £4,445.82, and that this sum was recoverable from him, pursuant to section 20 of the Supplementary Benefits Act 1976. In due course, the claimant appealed to the tribunal, who in the event upheld the adjudication officer.

The tribunal made the following findings of fact:

"Paragraphs 1, 2, 3, 4 and 5 of the facts before the adjudication officer in the AT2 are accepted. In addition the schedule of overpayment had one or two typing errors, for instance on the second line down, the amount overpaid should be £2.54 and not £3.54 and on the penultimate line in the final column, amount overpaid, it should read 'for the period 28 November 1983 to 25 November 1984 £659.36'. Nevertheless the tribunal find that the amount overpaid is correct at £4,445.82. It is accepted by the appellant's representative that there [were] several misrepresentations albeit innocent."

In upholding the adjudication officer's decision, the tribunal decided that there had been a misrepresentation (a matter admitted by the claimant's representative), that such misrepresentation went to a material fact (it concealed the fact that war disablement pension was being paid to the claimant's wife; he had declared on form A11 that the only income received by himself and his family was unemployment benefit amounting to £15.90 per week, and in various further statements he had declared that there had been no change in his circumstances) and such misrepresentation had resulted in an overpayment. The tribunal accepted that the schedule of overpayment was now correct and that the overpayment amounted to £4,445.82. However, the claimant's representative had taken a technical point, and that is really the subject matter of the present appeal.

The claimant's representative contended before the tribunal (and now contends before me) that section 9(1) of the Limitation Act 1980 applied, and that in computing any overpayment of benefit recoverable the calculation could not go back more than six years. The tribunal rejected this contention, pointing out that proceedings before the adjudicating authorities did not constitute an action for recovery, and section 9(1) of the Limitation Act 1980 only applied to actions in the Courts. Section 9(1) reads as follows:

"An action to recover any sum recoverable by virtue of any. Enactment shall not be brought after the expiration of six years from the date on which the cause of action occurred".

The same question which came before the tribunal appears to have been ventilated in an earlier case CSB/1158/1982, where at paragraph 9 the learned Commissioner stated as follows:

"9 . . . . in my judgment the Limitation Act has no relevance. Recovery under section 20 (which is for the Secretary of State alone) only arises once the adjudicating authorities have determined there is a recoverable amount and have determined what it is. That is the sole jurisdiction of the adjudicating authorities. They are not concerned with whether money can or should be recovered, see paragraph 4 of R(SB) 44/83."

The Commissioner then went on to point out that time began to run within section 9(1) only after the appellate procedure had been exhausted:

"Accordingly until adjudication is complete the Secretary of State has no right to recover. It is only from then that the Limitation Act period will apply as only then does the Secretary of State's right of action accrue. To accept that notification of the date of the adjudication officer's decision as the relevant date will mean that the Secretary of State was entitled as of that moment to recover notwithstanding that there was an appeal in progress. It would not I think be the intention of Parliament to provide for appeals against an initial determination if such were the case . . ."

The Commissioner continued:

"Turning to the more detailed question of section 9 of the Limitation Act 1980 I find that refers to the date when a right accrues under an Act. Section 26(3)(a) of the Supplementary Benefits Act 1976 provides for recovery of a civil debt [within] a three year period. Therefore if the Limitation Act 1980 were relevant section 9 is superseded by section 26(3)(a) referred to above. There is nothing in the Limitation Act 1980 which states its provisions supersede other enactments which give a lesser period of limitation than the Limitation Act 1980 itself provides. The position is that if the tribunal do on proper analysis find there has been an overpayment then the Secretary of State can recover that sum provided he takes steps within three years of the final decision of the adjudicating authorities."

Section 26(3)(a) has in fact been repealed by Schedule 11 to the Social Security Act 1986 with effect from 6 April 1987. However, nothing turns on that point. The plain fact is that section 9(1) of the Limitation Act 1980 simply has no application to proceedings before the adjudicating authorities. But when the amount of overpayment has been finally determined by them, as in this case it is by my decision (unless it is proposed to take the matter on appeal to the Court of Appeal), then, and then only, for the purposes of recovery of the overpayment by action in the Courts, time begins to run.

Accordingly, the point taken on behalf of the claimant is a bad one. The tribunal did not err in point of law and in consequence I dismiss this appeal.

Date: 28 March 1990 (signed) Mr. D. G. Rice
Commissioner